Citation NR: 9633030
Decision Date: 11/21/96 Archive Date: 12/02/96
DOCKET NO. 94-24 918 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to an increased rating for spondylolisthesis
at L4-5, currently rated 20 percent disabling.
2. Whether new and material evidence has been submitted to
reopen the claim for service connection for radiculopathy of
the left lower extremity.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Gregory W. Fortsch, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1975 to November
1991.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from rating actions by the Phoenix,
Arizona, Regional Office (RO) of the Department of Veterans
Affairs (VA). In May 1994, a hearing was held at the RO
before a hearing officer. A transcript of that hearing is of
record.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran generally claims that he is entitled to a rating
in excess of 20 percent for spondylolisthesis at L4-5 because
the disability has increased in severity. The veteran also
contends that he has submitted new and material evidence
sufficient to reopen the claim for service connection for
radiculopathy of the left lower extremity.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for a rating in excess of 20
percent for spondylolisthesis at L4-5. It is also the
decision of the Board that the veteran has failed to submit
new and material evidence to reopen the claim for service
connection for left lower extremity radiculopathy.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. The veteran’s spondylolisthesis at L4-5 is manifested by
tenderness and some limitation of extension with discomfort
on motion, but there is no evidence of muscle guarding,
spasm, or symptoms of radiculopathy and range of motion and
flexion are normal.
3. The last final disallowance of the veteran’s claim of
service connection for radiculopathy of the left lower
extremity was issued by the RO in a March 1992 rating action.
4. Additional evidence received since March 1992 is
cumulative or, when considered in the context of all the
evidence, both new and old, does not create a reasonable
possibility that the outcome of the decision would be changed
if the claim were reopened.
CONCLUSIONS OF LAW
1. The requirements for a rating in excess of 20 percent for
the veteran’s spondylolisthesis at L4-5 have not been met.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.71,
Diagnostic Codes 5289, 5292, 5293, 5295 (1995).
2. Evidence received since the last final disallowance of
the claim for service connection for left lower extremity
radiculopathy by the RO in March 1992 is not new and
material; the claim is not reopened. 38 U.S.C.A. §§ 5108,
7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating Claim
Initially, the Board notes that the veteran’s increased
rating claim is found to be well-grounded under 38 U.S.C.A.
§ 5107(a). That is, he has presented a claim which is
plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In
general, an allegation of increased disability is sufficient
to establish a well-grounded claim seeking an increased
rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The
Board is also satisfied that all relevant facts have been
properly developed, and that no further assistance to the
appellant is required in order to satisfy the VA’s duty to
assist him mandated by 38 U.S.C.A. § 5107(a).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet.App. 55 (1994); 38 C.F.R. § 4.2 (1995).
Disability evaluations are determined by the application of
the VA’s Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§ 4.1 (1995).
The Rating Schedule provides a compensable rating for
intervertebral disc syndrome when there it is shown to be
mild (10 percent), moderate with recurring attacks (20
percent), severe with recurring attacks and intermittent
relief (40 percent), or pronounced with persistent symptoms
compatible with sciatic neuropathy with characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to the site of the diseased
disc with little intermittent relief (60 percent). See
38 C.F.R. § 4.71, Diagnostic Code 5293 (1995). The Rating
Schedule also provides a compensable rating for lumbosacral
strain when there is evidence of characteristic pain on
motion (10 percent), muscle spasm on extreme forward bending
with loss of lateral spine motion, unilateral, in a standing
position (20 percent), or listing of the whole spine to the
opposite side with a positive Goldthwaite’s sign, marked
limitation of forward bending in a standing position, loss of
lateral motion with osteoarthritic changes, or narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion (40 percent). See
38 C.F.R. § 4.71, Diagnostic Code 5295 (1995). The Rating
Schedule provides a compensable rating for limitation of
motion of the lumbar spine when that limitation is slight (10
percent), moderate (20 percent), or severe (40 percent). See
38 C.F.R. § 4.71, Diagnostic Code 5292 (1995). Finally, the
Rating Schedule provides a rating for ankylosis of the lumbar
spine when it is characterized as favorable (40 percent) or
unfavorable (50 percent). See 38 C.F.R. § 4.71, Diagnostic
Code 5289 (1995).
The veteran’s service medical records show extensive
treatment for back problems in the service. May 1986 entries
show diagnoses of low back pain and mechanical low back pain
with no neurological signs. X-ray films at the time showed
evidence of minimal disc space narrowing at L5 and partial
sacralization of the L5 transverse process bilaterally. Low
back pain was noted in several entries in 1987 and 1988.
Spondylolisthesis at L4-5 was diagnosed in March 1991 and at
a November 1991 discharge examination.
The veteran underwent VA examinations in October 1992.
Objective findings revealed that the veteran’s build was
muscular and obese with a normal posture and gait. In the
back, there was tenderness at the posterior iliac spine and
along the belt line. Straight leg raising was unremarkable,
and there was no evidence of atrophy or weakness. Range of
motion of the back was normal as was anterior and lateral
flexion and rotation. The veteran was able to bring his
fingertips to within 10 inches of the floor. The examiner
noted a “slight decrease in the back by about 5 to 10
degrees” with limitation due to discomfort. The examiner
concluded that the veteran’s back examination showed no
objective abnormalities of significance. He added that the
veteran did experience discomfort with hyperextension of the
lumbar spine, but that there was no objective evidence of
radicular abnormalities.
At the October 1992 neurological examination, there was no
problem with straight leg raising or reverse straight leg
raising. The veteran was able to bend over to at least 90
degrees and nearly touch his toes. He could backbend to a
lesser extent. Knee and ankle jerks were present. Pin prick
was not felt in any part of the left leg. The examiner found
no objective evidence of radiculopathy.
In 1994, the veteran attempted to enlist in the Army National
Guard reserves. In response to that request, the veteran’s
back disability was evaluated and an addendum to a Medical
Board report was prepared in March 1994. The report revealed
diagnoses of mechanical low back pain and spondylolisthesis
at L5-S1. The examiners concluded that the veteran was
unable to perform full duty and would not be able to return
to full duty in the future.
In May 1994, the veteran gave testimony at the RO before a
hearing officer. He testified that his back disability
limited his daily activities, was getting worse, and caused
sharp pain and discomfort. See Hearing Transcript (T), p. 2.
He stated that he experiences pain when he lifts items or
does too much bending, and he also complained of difficulty
sleeping as a result of his back. T at 3. He added that he
took Motrin for the pain which he described as “constant,”
and noted that he was unable to help his wife with even
simple chores around the house. T at 4-6.
In June 1994, the veteran underwent VA orthopedic and
neurological examinations. The orthopedic examiner noted
that the veteran had tenderness in the lumbosacral area.
Flexion of the lumbosacral spine was 65 degrees, while
extension was measured at 10 degrees. Lateral motions were
20 degrees, and lateral rotation was 50 degrees. Discomfort
was noted on all motion of the lumbosacral spine, but there
was no evidence of muscle guarding, spasm, or tilt. The
veteran was able to heel-and-toe walk and knee bend
satisfactorily. The veteran was not wearing a back brace,
and was not using any devices for ambulation. He was said to
be independent with respect to dressing and undressing as
well as moving on and off the examining table. X-ray films
revealed an impression of a minimal interval decrease in
Grade I anterolisthesis of L4 and L5 with probable
spondylolysis of L4 on the right and mild to moderate
degenerative changes at the L4-5 level. Spondylolisthesis of
the lumbosacral spine was diagnosed.
Neurological examination revealed intact cranial nerves.
Motor examination revealed a weakness of the left abductor
digiti minimi in the upper extremity. Reflex testing showed
symmetrical reflexes throughout including ankle jerks. Range
of motion of the back was full except for extension, which
was limited with reported pain; the veteran also demonstrated
full flexion. An impression of possible mild left S1
radiculopathy with symptoms and no objective findings was
provided.
Based on the above evidence, the Board concludes that a
rating in excess of 20 percent is not warranted at this time.
Ratings of 40 percent under 38 C.F.R. § 4.71, Diagnostic
Codes 5293 and 5295, require evidence of severe
intervertebral disc syndrome with recurring attacks and
severe lumbosacral strain with persistent symptoms compatible
with sciatic neuropathy with characteristic pain and
demonstrable muscle spasm, absent ankle jerk, or other
neurological findings, respectively. The evidence required
for a 40 percent rating under either of these diagnostic
codes is clearly not shown in this case. The veteran
exhibits ankle jerks, and there is no objective evidence of
muscle spasm or sciatic neuropathy. Minimal interval
decrease in Grade I anterolisthesis of L4 and L5 as well as
spondylolisthesis is noted, but there is no evidence of
severe intervertebral disc syndrome currently. The veteran
also does not qualify for a 40 percent rating for severe
limitation of motion of the lumbar spine or ankylosis of the
lumbar spine under 38 U.S.C.A. § 4.71, Diagnostic Codes 5289
and 5292 (1995). The most recent examination in June 1994
showed full range of motion and flexion of the back except
for some limited extension with reported pain. Rotation,
range of motion, and anterior and lateral flexion were normal
in October 1992 as well. These findings are not indicative
of severe limitation of motion or ankylosis so as to qualify
for a higher rating under either Diagnostic Code 5292 or
Diagnostic Code 5289.
As shown above, the Board has considered all potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or
not they have been raised by the veteran or his
representative, as required by Schafrath v. Derwinski, 1
Vet.App. 589 (1991). In this case, the Board finds no
provision upon which to assign a higher rating. Furthermore,
the Board recognizes that there are situations in which the
application of 38 C.F.R. §§ 4.40, 4.45, or 4.59 is warranted
in order to evaluate the existence of any functional loss due
to pain, or any weakened movement, excess fatigability,
incoordination, or pain on movement of the veteran’s joints.
See DeLuca v. Brown, 8 Vet.App. 202 (1995). While there is
some subjective evidence of pain on motion in this case, the
objective evidence demonstrates that all ranges of motion
were normal except for some limitation of extension of the
back which does not rise to the level of severe lumbar
limitation of motion. Furthermore, the veteran does not
exhibit weakness, deformity, atrophy, or fasciculation or
other objective signs of pain warranting a rating greater
than that recognized by the current evaluation. Thus, the
Board finds that 38 C.F.R. §§ 4.40, 4.45 or 4.59 do not
provide a basis for a higher rating.
The Board has reviewed all of the evidence in the veteran’s
claims file. Accordingly, the Board concludes that the
preponderance of the evidence is against the claim.
II. New and Material Evidence Claim
The veteran is seeking to reopen his claim for service
connection for left lower extremity radiculopathy. Pursuant
to 38 U.S.C.A. § 7105(a), a request for appellate review by
the Board of a decision by the RO is initiated by a notice of
disagreement (NOD) and completed by a substantive appeal
after a statement of the case (SOC) has been furnished. See
38 C.F.R. § 20.200 (1995).
A substantive appeal consists of a properly completed VA Form
9, "Appeal to Board of Veterans' Appeals," or correspondence
containing the necessary information. Proper completion and
filing of a substantive appeal are the last actions the
appellant needs to take to perfect an appeal. 38 U.S.C.A.
§ 7105(a) (West 1991); 38 C.F.R. § 20.202 (1995).
In order to perfect an appeal of an adverse determination by
the RO on a claim for service connection, the veteran must
file a substantive appeal within 60 days from the date that
the RO mails the SOC to the appellant, or within the
remainder of the 1-year period from the date of mailing of
the notification of the determination being appealed,
whichever period ends later. The date of mailing of the SOC
will be presumed to be the same as the date of the SOC and
the date of mailing the letter of notification of the
determination will be presumed to be the same as the date of
that letter for purposes of determining whether an appeal has
been timely filed. 38 U.S.C.A. § 7105(b)(1) (West 1991);
38 C.F.R. § 20.302(b) (1995). Under 38 U.S.C.A.
§ 7105(d)(3), the 60 day-period may be extended for a
reasonable period on request for good cause shown. An
extension of the period for filing the substantive appeal may
be granted on request for good cause. Denials of time limit
extensions are separately appealable issues. 38 C.F.R.
§ 3.109(b) (1995).
In this case, the veteran filed an NOD with the RO’s March
1992 decision denying service connection for left lower
extremity radiculopathy, but the veteran did not perfect his
appeal within the requisite time period. Therefore, the
determination is final and the veteran’s claim cannot be
reopened unless new and material evidence is submitted.
38 U.S.C.A. § 7105 (West 1991); Manio v. Derwinski, 1
Vet.App. 140 (1991); 38 C.F.R. § 3.104(a) (1995). In the
last final disallowance of the claim in March 1992, the RO
determined the veteran was not entitled to service connection
for left lower extremity radiculopathy because no chronic
disease process was shown in service.
Despite the finality of the prior rating decision, a claim
will be reopened and the former disposition reviewed if new
and material evidence is presented or secured with respect to
the claim which has been disallowed. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156(a) (1995). The United States
Court of Veterans Appeals (Court) has held that, when “new
and material evidence” is presented or secured with respect
to a previously and finally disallowed claim, the VA must
reopen the claim. Stanton v. Brown, 5 Vet.App. 563, 566
(1993).
With regard to petitions to reopen previously and finally
disallowed claims, the Board must conduct a two-part
analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).
First, the Board must determine whether the evidence
presented or secured since the prior final disallowance of
the claim is “new and material.” Colvin v. Derwinski,
1 Vet.App. 171, 174 (1991). The Court explained in Colvin
that “new evidence” is evidence that is not “merely
cumulative” of other evidence of record. Id. The Court has
also explained that evidence is “material” where it is
“relevant to and probative of the issue at hand” and where it
is of “sufficient weight or significance that there is a
reasonable possibility that the new evidence, when viewed in
the context of all the evidence, both new and old, would
change the outcome.” Sklar v. Brown, 5 Vet.App. 140, 145
(1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); and Colvin,
1 Vet.App. at 174.
Second, if the Board determines that the evidence is “new and
material,” it must reopen the claim and evaluate the merits
of the claim in view of all the evidence, both new and old.
Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court
has reviewed and upheld these standards regarding the issue
of finality. Reyes v. Brown, 7 Vet.App. 113 (1994).
The issue of whether the evidence submitted is new and
material is a question of law and its credibility must be
presumed for the purpose of deciding whether it is new and
material. Justus v. Principi, 3 Vet.App. 510, 513 (1992).
However, the Court has held that this presumption of
credibility is not unlimited. Specifically, the Court has
stated that Justus does not require the VA to consider
patently incredible evidence (e.g. the inherently false or
untrue) to be credible. Duran v. Brown, 7 Vet.App. 216
(1994).
The Court has recently clarified that, with respect to the
issue of materiality, the newly presented evidence need not
be probative of all the elements required to award the claim
as in this case dealing with a claim for service connection.
Evans v. Brown, __ Vet.App. __, __, No. 93-1220, slip op. at
14-15 (Aug. 1, 1996) (citing Caluza v. Brown, 7 Vet.App. 498,
506 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996) (table)).
However, it is the specified bases for the final disallowance
that must be considered in determining whether the newly
submitted evidence is probative. Evans, slip op. at 15.
Such evidence must tend to prove the merits of the claim as
to each essential element that was a specified basis for that
last final disallowance of the claim. Evans, at 14. If the
evidence is “new” and “probative,” then it must be determined
whether such evidence presents a reasonable possibility of
changing the outcome of the prior decision based on all the
evidence. If these conditions are met, then the evidence is
both “new” and “material.” Evans, at 15.
The evidence submitted since the last final disallowance of
the veteran’s claim in March 1992 and claimed by the veteran
to be new and material consists of the results of October
1992 VA general medical and peripheral nerves examinations, a
May 1994 addendum to a Medical Board report, a May 1994
letter from the veteran’s employer, May 1994 hearing
testimony, and the results of June 1994 VA orthopedic and
neurological examinations. With respect to the veteran’s May
1994 testimony, the Board concludes that the evidence is
cumulative and does not create a reasonable possibility, in
the context of all of the evidence, both new and old, that
the outcome would be changed if the claim with reopened. The
veteran testified with respect to the limitations his back
has caused in his career and personal life. He also
testified that his back caused him much pain, and affected
his sleep habits. This testimony is duplicative of evidence
submitted by the veteran in the past, and will not suffice to
reopen the claim.
With regard to the remaining evidence, the Board concludes
that all of it is new, but none of it is material. The May
1994 letter from the veteran’s employer describes the
veteran’s job description and some other information about
the veteran, but it does not go to the issue of whether
service connection should be established for left lower
extremity radiculopathy. VA general medical and peripheral
nerve examination reports show no objective evidence of left
lower extremity radiculopathy. The May 1994 Medical Board
addendum shows diagnoses of mechanical low back pain and the
veteran’s service-connected spondylolisthesis, but there is
no showing of left lower extremity radiculopathy. Finally,
June 1994 VA orthopedic and neurological examination reports
show a diagnosis of spondylolisthesis, but there is no
objective evidence of left lower extremity radiculopathy.
Based on its review of the aforementioned evidence, the Board
concludes that none of the aforementioned evidence, when
viewed in the context of all new and old evidence, creates
the possibility that the outcome would be changed if the
claim were reopened.
Although the VA does not have a statutory duty to assist a
claimant in developing facts pertinent to his claim where it
is determined that new and material evidence has not been
submitted to reopen a claim for service connection, the VA
may be obligated under 38 U.S.C.A. § 5103(a) to advise a
claimant of evidence needed to complete his application. See
Graves v. Brown, 8 Vet.App. 523 (1996). This obligation
depends upon the particular facts of the case and the extent
to which the Secretary of the VA has advised the claimant of
the evidence necessary to be submitted with a VA benefits
claim. Robinette v. Brown, 8 Vet.App. at 80.
In this case, the RO fulfilled its obligation under section
5103(a) in the May 1994 SOC and subsequent November 1994
supplemental SOC in which the RO informed the veteran of the
reasons for the denial of his claim. Furthermore, by this
decision, the Board is informing the veteran of the evidence
which is lacking and that is necessary to reopen his claim.
It should be noted that the veteran’s representative stated
in his October 1996 written brief presentation that the
veteran sought to reopen his claim based upon private
physician’s medical records. However, no new private medical
records were associated with the claims file. Thus, in light
of the fact that the evidence necessary to reopen this claim
has not been provided, the claim for service connection for
left lower extremity radiculopathy remains denied.
ORDER
The appeal for a rating in excess of 20 percent for
spondylolisthesis is denied.
New and material evidence not having been submitted to reopen
the claim for service connection for left lower extremity
radiculopathy, the claim remains denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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